Holding

Expert evidence is not required in every medical negligence case before consumer fora; the District Forum's finding of negligence and award of compensation is affirmed.

Summary

The appellant's wife was admitted to Nikhil Super Speciality Hospital with intermittent fever; the hospital failed to diagnose malaria and treated her for typhoid, leading to her death after being transferred to another hospital. The District Consumer Forum held the hospital negligent and awarded Rs. 2 lakh compensation, but the State and National Consumer Commissions set aside the award on the ground that no expert evidence was produced. The Supreme Court held that expert testimony is not mandatory in every medical negligence case before consumer fora and that the District Forum correctly relied on the facts to find negligence. It also declared the directions in Martin F. D'Souza v. Mohd. Ishfaq requiring expert evidence in all such cases to be non‑binding and per incuriam. Consequently, the Court restored the District Forum's award and ordered the hospital to pay the compensation.

Issues considered

Whether expert evidence is a mandatory requirement in medical negligence complaints before consumer fora under the Consumer Protection Act, 1986.
Whether the directions in Martin F. D'Souza v. Mohd. Ishfaq (requiring expert evidence in all medical negligence cases) are binding precedent.
Whether the doctrine of res ipsa loquitur applies to the present case of alleged medical negligence.
Whether provisions of the Indian Evidence Act, 1872 apply to summary proceedings before consumer fora.
Whether the orders of the State and National Consumer Commissions are per incuriam.

Legislation cited

Consumer Protection Act, 1986s. 2(1)(g), s. 3
Indian Evidence Act, 1872s. 61, s. 64, s. 74, s. 75

Subjects

medical negligenceconsumer protectionexpert evidenceres ipsa loquiturBolam testper incuriamsummary trialconsumer forumevidence act

Judgment

[2010] 5 S.C.R. 1

V. KISHAN RAO A
v
NIKHIL SUPER SPECIALITY HOSPITAL & ANOTHER.
(Civil Appeal No. 2641 of 2010)
MARCH 8, 2010*
8
. [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

Consumer Protection Act, 1986:

Medical Negligence - Expert Evidence - Requirement c
of - Held: Expert evidence is not required in all medical
negligence cases - Expert evidence is necessary when Fora
comes to the conclusion that case is complicated or such that
it cannot be resolved without assistance of expert opinion -
Fora cannot follow mechanical or strait jacket approach - 0
Each case has to be judged on its own facts - Negligence.

s. 2(1)(g) - Medical Negligence/Deficiency in service -
Patient suffering intermittent fever with chill admitted to
hospital - Condition worsened critically and shifted to other
hospital, where patient was declared dead - Complaint by E
husband before District Forum alleging deficiency in service
- Award of two lakhs compensation - Set aside by State
Commission as also National commission holding that there
was no expert evidence to prove negligence - On appeal,
held: It was a case of wrong treatment - Test conducted by F
other hospital for malaria found positive - Wide/ test for
·typhoid found negative - Patient treated for typhoid and not
malaria by hospital where patient admitted when complaint
was of intermittent fever with chill - As a result condition of
patient deteriorated and became very critical and was G
removed to other hospital where she could not be revived -
She had no pulse, no BP and in an unconscious state with
pupils dilated and had to be put on a ventilator-'- Thus, expert
Judgment Recd. ON. 4.5.2010.
1 H
2 SUPREME COURT REPORTS [2010] 5 S.C.R.

A evidence was not necessary to prove medical negligence.

Negligence:

Medical negligence - Doctrine of res ipsa loquitur - ·
Applicability of - In medical negligence cases - Held:
B Qoctrine is applicable where negligence is evident -
Complainant does not have to prove anything as the thing
(res) proves itself - Respondent has to prove that he has
taken care and done his duty to repel the charge of negligence
- Doctrines - Torts.
c
Medical Negligence - Requirement of expert evidence
in medical negligence cases - Directions in D'souza's case
'to have expert evidence in all cases of medical negligence
whether binding - Held: Directions rendered in D'souza's case
0 ignoring the prold.§ions of the governing statute and earlier
larger Bench decision on the point - Thus, not a binding
precedent in cases of medical negligence before consumer
Fora - Precedent.

Medical negligence - Bo/am test - Held: Lays down the
E standards for judging cases of medical negligence.

Evidence Act, 1872: ss. 61, 64, 74 and 75 - Comp/amt
before consumer forum alleging medical negligence -
Opposite party alleging that hospital records proved without
F following the provisions of the Evidence Act - Held:
Provisions of the Evidence Act are not applicable -
Complaints before consumer forum are to be tried summarily.

Judgment/Order: 'Per incuriam' - When judgment
rendered 'per incuriam' - Held: When a judgment is passed
G ignoring the provisions of the governing statute and earlier
larger Bench decision on the point, it is rendered 'p'rilr
incuriam'.
. The appellant's wife was suffering from intermittent
H fever with chill and was admitted in the respondent no. 1
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 3
HOSPITAL & ANR.
hospital. She underwent certain tests but the tests did not A
reveal malaria. The patient did not respond to the
medicines administered to her and her condition
deteriorated day by day. She was finally shifted to Y
hospital in a very precarious condition and was virtually
clinically dead. The Y hospital issued a death certificate B
which disclosed that the patient died due to cardio
respiratory arrest and malaria. The appellant filed a
complaint against the respondent no. 1 hospital before
the District Forum alleging negligen~e in treating his wife.
The doctor R of the respondent no. 1 hospital deposed C
that the appellant's wife was not treated for malaria. The
District Forum held that the patient was suffering from
malaria but was treated for typhoid and as such was
subjected to the wrong treatment, and awarded
compensation of Rs. 2 lakhs. The respondent no. 1 filed
0
an appeal. The State Consumer Disputes Redressal- -
Commission allowed the appeal holding that there was ·
no expert opinion to substantiate the allegation of
negligence. The National Consumer Disputes Redressal
Commission upheld the order of the State Consumer
Forum. Hence the present a·ppeal. E
Allowing the appeal, the Court
HELD: 1. The general direction in *Martin F. D'souza
v. Mohd. lshfaq's case to have expert evidence in all cases
of medical negligence is not binding. In the facts and F
circumstances of the case, expert evidence is not
required and District Forum rightly did not ask the
appellant to adduce expert evidence. Both State
Commission and the National Commission fell into an
error by opining to the contrary. The orders passed by G
the State Commission and the National Commission ~re
set aside and the order passed by the District Forum is
restorecf. The respondent no.1 is directed to pay the
appellant the amount granted in his favour by the District
Forum. [Para 55] (33-F-H; 34-A] H.
4 SUPREME COURT REPORTS [2010] 5 S.C.R.

A 2.1. The complaints -before consumer forums are
tried summarily and the Evidence Act, 1872 in terms doe·s
not apply. The District Forum rightly· overruled the
objection on behalf of the respondent no.1 before the
District Forum that the complaint sought to prove Y
B Hospital's record without following the provisions of ss.
61, 64, 74 and 75 of the Evidence Act. [Para 8] [14-G-H;
15-A-B] - ~

Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and
c others (200~) 9 sec 221, relied on.

2.2. Before forming an opinion that expert evidence
is necessary, the Fora under the Act must come to a
conclusion that the case is complicated enough to require
the opinion of ~n expert or that the facts of the case are
D such that it cannot be resolved by the members of the
Fora without the assistance of expert opinion. In these
matters no mechanical approach can be followed by
these Fora. Each case has to be judged on its own facts..
If a deCision is taken that in all cases medical negligence
E has to be pH>Ved on the basis o(expert evidence, in that
event the efficacy of the remedy provided under this Act
will be unnecess~rily burdened and in many cases such
remedy would be illusory. [Para 13] [16-C-F]
'\,· .. ·. ....
-'·
2.3. As regard the requirement of expert evidence,
F before the Fora under the Act both simple and
complicated cases may come. In complicated .cases
which require recording of evidence of expert, the
complainant may be asked to approach the civil court for
appropriate relief. Section 3 of the. Consumer Protection
G Act provides that the provisions of the Act shall be in
addition to and not in derogation of the provisions of any
other law for the time being in force. Thus, the Act
preserves the right of the consumer to approach the civil
court· in complicated cases of medical negligence for
H necessary relief. Cases in which complicated questions
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 5
HOSPITAL & ANR

d0 not arise the Forum can give 'redressal to an· A
at)grieved consumer on the basis of a summary trial on
affidavits. [Para 32) [23-F-H; 24-A]

***Indian Medical Association vs. V.P. Shantha & others
(1995) 6 sec 651, relied on.
B
2.4. Before the consumer Fora if any of the parties
wants to adduce experl evidence, the members of the Fora
by applying their mind to the facts and circumstances of
thii case and the materials on record can allow the parties
to adduce such evidence if it is appropriate to do so in C
the facts of the case. The discretion in this matter is left
to the members of Fora especially when retired judges of
Supreme Court and High Court are appointed to head
National Commission and the State Commission
respectively. Therefore, these questions are to.be judged D
on the facts of each case and there cannot be a
mechanical or strait jacket approach that each and every
case must be referred to experts for evidence. When the
Fora finds that expert evidence is required; the Fora must
keep in mind that an expert witness i1_1 a given case E
normally discharges two functions. The 1'irst duty of the
expert is to explain the technical issues as clearly as
possible so that it can be understood by a common man.
The other function is to assist the Fora in deciding
whether the acts or omissions of the medical
F
practitioners or the hospital constitute negligence. In
doing so, the expert can throw considerable light on the
current state of knowledge in medical science at the time
when the patient was treated. In most of the cases the
question whether a medical practitioner or the hospital is G
negligent or not is a mixed question of fact and law and
the Fora is not bound in every case to accept the opinion
of the expert witness. Although, in many cases the
opinion of the expert witness may assist the Fora to
decide the controversy one way or the other. [Para 54)
[33-A-F] H
6 SUPREME COURT REPORTS (2010) 5 S.C.R.

A 2.5. The instant case is a case of wrong treatment in
as much as the patient was not treated for malaria when
the complaint is of intermittent fever and chill. Instead the
respondent No.1 treated the patient for Typhoid and as
a result of which the condition of the patient deteriorated.
s When the condition became very critical the patient was
remo.ved to Y Hospital but patient,could not be revived.
RW-1-doctor R admitted in his evidence that the patient
was r.ot treated for malaria. The evidence shows that of
the several injections given to the patient, only one was
C of Lariago. Apart from Lariago, several other injections
were also administered on the patient. Lariago may be
one injection for treating malaria but the finding of Y
Hospital shows that smear for malarial parasite was
positive. There is thus a definite indication of malaria, but
so far as Widal test was conducted for Typhoid it was
D found negative. Even in such a situation the patient was
treated for Typhoid and not for malaria and when the
condition of the patient worsened critically, she was sent
to Y Hospital in a very critical condition with no pulse,
no BP and in an unconscious state with pupils dilated,
E as a result of which the patient had to be put on a
ventilator. Thus, the expert evidence was not necessary
to prove medical negligence. [Paras 14 and 15) (16-F-H;
17-A-B]
'
F 3. The parameters set down in Bolam test are to be
reconsidered as a guide to decide cases on medical
negligence and specially in view of Article 21 of the
Constitution which encompasses within its guarantee, a
right to medical treatment and medical care. In England,
G Bolarn test is now considered merely a 'rule of practice
or of evidence. It is not a rule of law.' However, Bolam
test correctly lays down the standards for judging cases
of medical negligence, and there is no departure from the
same. [Para 21] (19-C-E]
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 7
HOSPITAL & ANR.
**Jacob Mathew vs. State of Punjab and another (2005) A
6 sec 1, relied on.

Bo/am vs. Friern Hospital Management Committee 1957
(2) All England Law Reports 118 - referred to.

Medical Negligence by Michael Jones Sweet & Maxwell, B
Fourth Edition 2008, paragraph 3-039 pg 246; Professional
Negligence by Jackson & Powell Sweet & Maxwell, Fifth
Edition, 2002 paragraph 7-047 pg 200; Clinical Negligence
by Mi~hael Powers QC, Nigel Harris and Anthony Barton,
4th Edition, Tottel Publishing paragraph 1.60, referred to. C

4.1 When a judgment is rendered by ignoring the
provisions of the governing statute and earlier largQr
Bench decision on the point such decisions are rendered
'Per incuriam'. [Para 51) [32-A] 0
A.R. Antulay vs. R.S. Nayak and Anr. (1988) 2 SCC 602;
Punjab Land Development and Reclamation Corporation
Ltd., Chandigarh vs. Presiding Officer, Labour Court,
Chandigarh and Ors. (1990) 3 SCC 682, referred to.
E
4.2. In **Jacob Mathew vs. State of Punjab's case, the
direction by the three-judge bench for consulting the
opinion of another doctor before proceeding with
criminal investigation was confined only in cases of
criminal complaint and not in respect of cases before the F
Consumer Fora. Subsequently, the directions in
D'souza's case to have expert evidence in all cases of
medical negligence are not consistent with the law laid
down by the larger Bench in Mathew's case. The reason
why the larger Bench in Mathew's cas~ did not equate G
the two is obvious in view of the jurisprudential and
conceptual difference between cases of negligence in
civil and criminal matter. Those directions in D'souza's
case are also inconsistent with the principles laid down
in another three-Judge Bench of this Court in ***Indian
H
8 SUPREME COURT REPORTS [2010) 5 S.C.R.

. - •:."""l.r·~ vt,1t·• ---;rt n'~("'\h hr• .. . . . 1 •
A Medical Assoc1at1on v$. V.P. ·sliahtha's case wherein it
was held that the defihition of 'service' u/s.2(1)(o) of the
~ct has to be understood on broad parameters and it
cannot exclude service rendered by a medical
practitioner. In D'souza's case, the earlier larger Bench
s decision in ****Dr. J. J. Merchant vs. ShrinJth Chaturvedi has
not b.een noticed. [Paras 29, 30, 31 and 37] [23-A-E; 26-
8]
4.3. The directions in paragraph 106 in D'souza's
• . .~d
case 1s contrary to the provisions of the Consumer
C Protection Act, the .Rules which is the governing statute
and also to the avowed purposes of the Act. The Act was
brought about in the background of worldwide
movement for~consumer protection. It is clea.r from the
statement of objects and reasons of the Act that it is to
D provide a forum for speedy and simple redressal of
consumer disputes. Such avowed legislative purpose
cannot be either defeated or diluted by superimposing a
requirement of having expert evidence in all cases of
medical negligence regardless of factual requirement of
E the case. If that is done the efficacy of remedy under the
Act will be substantially curtailed and in many cases the
remedy will become illusory to the common man. [Paras
38, 39 and 42] [26-8-D; 42-A-C]

F State of Karnataka v. Vishwabharathi House Building
Coop. Society & Others (2003) 2 SCC 412; Lucknow
Development Authority v. M. K. Gupta '(1994) 1 SCC 243;
Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668;
Spring Meadows Hospital v. Harjo/ Ahluwalia (1998) 4 SCC
G 39; India Photographic Co. Ud, v. H.D. Sh.ourie (1.999) 6 SCC 1

428, referred to. · · ·

4.4. In a case where negligence is evident, the
principle of res ips.a loquitur "f!erates ~nd the complainant
does not have to prove anything as the thing (res) proves
H itself. In such ~ case it is for the respondent to prove that
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 9
HOSPITAL & ANR.

he has taken care and done his.duty to repel th~ e-trarge A
of negligence. If the general directions in paragraph 106
in D'souza are to be followed then the doctrine of res ipsa
loquitur which is ·applied in cases of medical negligence
by this Court and also by Courts in England would be
redundant. [Paras 47 and 48) [31-A-C] B
Spring Meadows Hospital v. Harjo/ Ahluwalia (1998) 4
SCC 39; Postgraduate Institute of Medial Education and
Research, Chandigarh v. Jaspal Singh and others (2009) 7
sec 330, referred to.
c
Scott v. London & St. Katherine Docks Co. (1865) 3 H &
C. 596, referred to.

4.5. The two-Judge Bench in D'souza's case has
taken note of the decisions in Indian Medical
0
Association's case and Mathew's case, but even after
taking note of those two decisions, D'souza's case gave
those general directions in paragraph 106 which are
contrary to the principles laid down in both those larger
Bench decisions. The larger Bench decision in Dr. J.J. E
Merchant's case has not been noted in D'souza's case.
Apart from that, the directions in paragraph 106 in
D'souza's case are contrary to the provisions of the
governing statute and also inconsistent with the avowed
purpose of the Act. Thus, the general direction. given"'-tn
_p~ragraph 106 in D'souza's case cannot be accepted as F
constituting a binding precedent in cases of medical
negligence before consumer Fora and those directions
must be confined to the particular facts of that case.
[Paras 53 and 49) [31-C-D; 32-E-G]
G
*Martin F. D'souza V. Mohd. lshfaq 2009 (3) sec 1, held
per incuriam.

**Jacob Mathew vs. State of Punjab and another (2005)
6 SCC 1; ***Indian Medical Association vs. V. P. Shantha &
H
10 SUPREME COURT REPORTS [2010] 5 S.C.R.

A' others (1995) s·'.sfic 651 ;.tl'r*~l!Jr.1§'taj_; MercHtint and:om'f:Jrs· .'
vs. Shrinath Chaturvedi (2002) 6 sec 635, relied on.

Tarun Thakore vs. Dr. Noshir M. Shroff O.P. No. 215/2000
dated 24.9.2002, referred to.
B R. vs. Lawrence (1981) 1 All ER 974; Andrews v. Director
of Public Prosecutions, (1937) 2 Al~ ER 552 (HL); Riddell vs.
Reid (1943) AC 1 (HL)/referred td.

Case Law Reference:
c (2009) 9 sec 221 Relied on. Paras 8, 29,
1957 (2) All ER 118 Referred to. Paras 16, 17, 18,
19, 21
(2005) 6 sec 1 Relied on. Paras 21, 27, 29,
D 30, 53
(1981) 1 All ER 974 Referred to. Para 23
(1937) 2 All ER 552(HL) Referred to. Para 23
(1943) AC 1 (HL) Referred to. Para 25
E
(1995) 6 sec 651 Relied on. Paras 32, 33, 34
(2002) 6 sec 635 Relied on. Paras 36, 37, 53
(2003) 2 sec 412 Referred to. Para 40
F (1994) 1 sec 243 Referred to. Para 41
(2000) 1 sec 668 Referred to. Para 41
(1998) 4 sec 39 Referred to. Para 41, 43
(1999) 6 sec 428 Referred to. Para 41
G
(2009) 1 sec 330 Referred to. Para 44
(1865) 3 H & C. 596 Referred to. Para 45
,
2009 (3) sec 1 Held per incuriam Para 49, 50,
H 53, 55
V. KISHAN RAO v. NIKHIL, SUPER SPECIALITY 11
· HOSPITAL &. 1ANR.
(1988) 2.scc 602. Ref~rrt;!d·to.:raa :JP.~r~51. A
(1990) 3 SCC 682 Referred to. Para 52
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2641 of 2010.
B
From the Judgment & Order dated 19.2.2009 of the
National Consumer Disputes Redressal Commission, New
Delhi in Revision Petition No. 303 of 2009.

N.S. Gahlot, R.K. Singh, Sanjeev Malhotra for the
Appellant. c
K. Maruthi Rao for the Respondents.

The Judgment of the Court was delivered by

G.ANGULY, J. 1. Leave granted. . D
2. This appeal has been filed challenging the judgment and
order dated 19.02.2009 of the National Consumer Disputes
Redressal Commission, New Delhi (hereinafter, 'National
Commission') which upheld the finding of the State Consumer
Forum. The order of the National Commission runs as follows: E

"Heard. The State Comriission after elaborate discussion
has come to the conclusion that there was no negligence
on the part of the respondent doctor. All possible care was
taken by the respondent in treating the petitioner. The State F
Commission has also recorded a finding that no expert
opinion was produced by the petitioner to prove that the
line of treatment adopted by the respondent hospital was
wrong or was due to negligence of respondent doclo.(.
Dismissed". G
3. The appellant, who happens to be the original
complainant, is an officer in the Malaria department and he got
his wife admitted in the Respondent No. 1 hospital on 20.07.02
as his wife was suffering from fever which was intermittent in
nature and was complaining of chill. H
12 SUPREME COURT REPORTS [2010] 5 S.C.R.

lt. l.'rf· : -- ·- -. . j, ' l
A 4. In the complaint,· the appellant further alleged that his
wife was subjected to certain tests by the. respondent No.1 but
the test did not show that she was suffering from malaria.:1t was
also alleged that his wife was not _responding to the medicine
given by the opposite party No.1 and on 22nd July, 2002 while
B she was kept admitted by respondent No.1, saline was given
to her and the complainant had seen some partides in the
saline bottle. This was brought to the notice of the authorities
of the respondent No.1 but to no effect. Then on 23rd July 2002
complainant's wife was complaining of respiratory trouble and
c the· complainant also brought it to the notice of the authorities
of the respondent No.1 who gave artificial oxygen to the
patient. According to the complainant at that stage artificial
oxygen was not necessary but without ascertaining the actual
necessity of the patient, the same was given. According to the
complainant his wife was not responding to the medicines and
0
'. thus her condition was deteriorating day by day. The patient was
' finally shifted to Yashoda Hospital from the respondent No.1.

5. At the time of admission in Yashoda Hospital the
following conditions were noticed:
E
"INVESTIGATIONS

Smear for MP-Positive-ring forms & Gametocytes of P.
Falciparam seen Positive index-2-3/1 OOR~CS

F LFT-TB-1.5
DB-1.0
18-0.5

G WIDAL test-Negative
HIV & HBsAG-Negative
PT-TEST-22 sec
CONTROL-13 sec
H APTT-TEST-92 sec
'
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 13
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]

CONTROL-38 sec A
CBP-HB-3.8% gms
TLC-30.900/cumm
RBC-1.2/cumm
HRP II-Positive
B urea-38 mg/di B
S Creatinine-1.3 mb/dl
S Electrolytes-NA/K/CL-148/5.2/103 mEq/L
C X R - s/o ARDS

CASE DISCUSSION C;
45 yrs old of patient admitted in AMC with H/o fever-8 days
admitted 5 days back in NIKHIL HOSPITAL & given INJ
MONOCEF, INJ CIFRAN, INJ CHOLROQUINE because
of dysnoea today suddenly shifted to Y.S.S.H. for further
management. Upon arrival in AMC, patient unconscious, D
no pulse, no BP, pupils dilated. Immediately patisnt
intubated & ambu bagging AMC & connected to ventilator.
lnj. Atropine, inj. Adhenoline, inj. Sodabicarb given, DC
shock also given. Rhyth restored at 1.35 PM At 1~5 pm,
patient developed brady cardia & inspite oYrepeated E
Altropine & Adhenolin. HR-'O' DC shock 3JN~n. External
Cardiac massage given. In spite of all,)lle resuscitative
measure patient could not be revived & declared dead at
11.30pm on 24.7.2002".

6. In the affidavit, which was filed by one Dr. Venkateswar F
Rao who is a Medical Practitioner and the Managing Director
of the respondent No.1 before the District Forum, it was
admitted that patient was removed from respondent No.1 to the
Yashoda Hospital being accompanied by the doctor of the
respondent No.1. From the particulars noted at the time of G
admission of the patient in Yashoda Hospital it is clear that the
patient was sent to Yashoda Hospital in a very precarious
condition and was virtually, clinically dead.

7. On the complaint of the appellant that his wife was not H
14 SUPREME COURT REPORTS [201 OJ 5 9/,C.R.

A given proper treatment and the respondent No.1 was negligent
in treating the patient the District Forum, on a detailed
examination of the facts, came to a finding that there was
negligence on the part of the respondent No.1 and as such the
District Forum ordered that the complainant is entitled for refund
B of Rs.10,000/- and compensation of Rs.2 lakhs and also
entitled to costs of Rs.2,000/-.

8. The District Forum relied on the evidence of Dr.
Venkateswar Rao who was examined on behalf of the
respondent No.1. Dr. Rao categorically deposed "I have not
e· treated the case for malaria fever". The District Forum found
that the same is a clear admission on the part of the respondent
No.1 that the patient was not treated for malaria. But the death
certificate given by the Yashoda Hospital disclosed that the
patient died due to "cardio respiratory arrest and malaria". In
D,; view of the aforesaid finding the District Forum came to the
conclusion that the patient was subjected to wrong treatment
and awarded compensation of Rs.2 lakhs and .other directions
as mentioned above in favour of the appellant. The District
Forum also noted when the patient was admitted in a very
E critical .condition in Yoshoda Hospital and the copy of the
Haematology report dated 24.7.2002 disclosed blood smear
for malaria parasite whereas Wida! test showed negative. The
District Forum also noted that the case sheet also does not
show that any treatment was given for Malaria. The Forum also
F noted that the respondent-authorities, despite the order of the
Forum to file the case sheet, delayed its filing and there were
over writings on the case sheet. .Under these circumstances the
District Forum noted that case records go to show that wrong
treatment for Typhoid was given to the complainant's wife. As
G a result of such treatment the condition of the complainant's wife
became serious and in a very precarious condition she was
shifted to Yashoda Hospital where the record 'Shows that the
patient suffered from malaria but was not treated for malaria.
Before the District Forum, on behalf of the respondent No.1, it
was argued that the complaint sought to prove Yashoda
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 15
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
Hospital record without following the provisions of Sectia!1&'61, A
64, 74 and 75 of Evidence Act. The Forum overruled the
objection, and in our view rightly, that complaints before
consumer are tried summarily and Evidence Act in terms does
not apply. This Court held in the case of Malay Kumar Ganguly
vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 s
sec 221 that provisions of Evidence Act are not applicable
and the Fora under the Act are to follow principles of natural
justice (See paragraph 43, page 252 of the report).

9. Aggrieved by the order of the District Forum respondent
No. 1 preferred an appeal to the State Consumer Disputes C
Redressal Commission (FA No. 89 of 2005) and the insurance
company, which is respondent no. 2 before this Court, preferred
another appeal (FA no. 1066 of 2005). The State Forum vide
its order dated 31.10 .2008 allowed the appeals.
D
10. In doing so the State Commission relied on a decision
in Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No. 215/2000,
dated 24.9.2002) wherein the National Commission made.
some observations about the duties of doctor towards his
patient. From those observations it is clear that one of the duties · E
of the doctor towards his patient is a duty of care in deciding
what treatment is to be given and also a duty to take care in
the administration of the treatment. A breach of any of those
duties may lead to an action for negligence by the patient. The
State Forum also relied on a decision of this Court in Indian F
Medical Association vs. V. P. Shantha & others - ( 1995) 6
sec 65o1.
11. Relying on the aforesaid two decisions, the State
Forum found that in the facts and circumstances of the case,
the complainant failed to establish any negligence on the part G
of the hospital authorities and the findings of the District Forum
were overturned by the State Commission. In the order of the
State Commission there is a casual reference to the effect that
"there is also no expert opinion to state that the line of treatment
H
16 SUPREME COURT REPORTS [2010] 5 S.C.R.

A adopted by the appellant/opposite party No.1 Hospital is wrong
or is negligent".

12. In this case the State Forum has not held that
complicated issues relating to medical treatment have been
raised. It is not a case of complicated surgery or a case of
8
transplant of limbs and organs in human body. It is a case of
wrong treatment in as much as the patient was not treated for
malaria when the complaint is of intermittent fever and chill.
Instead the respondent No.1 treated the patient for Typhoid and
C as a result of which the condition of the patient deteriorated.
When the condition became very very critical the patient was
removed to Yashoda Hospital but patient could not be revived.

13. In the opinion of this Court, before forming an opinion
that expert evidence is necessary, the Fora under the Act must
D come to a conclusion that the case is complicated enough to
require the opinion of an expert or that the facts of the case
are such that it cannot be resolved by the members of the Fora
without the assistance of expert opinion. This Court makes it
clear that in these matters no mechanical approach can be
E followed by these Fora. Each case has to be judged on its own
facts. If a decision is taken that in all cases medical negligence
has to be proved on the basis of expert evidence, in that event
the efficacy of the remedy provided under this Act will be
unnecessarily burdened and in many cases such remedy would
F be illusory.

14. In the instant case, RW-1 has admitted in his evidence
that the patient was not treated for malaria. Of course evidence
shows that of the several injections given to the patient, only
one was of Lariago. Apart from Lariago, several other injections
G were also administered on the patient. Lariago may be one
injection for treating malaria but the finding of Yashoda Hospital
which has been extracted above shows that smear for malarial
parasite was positive. There is thus a def;inite indication of
malaria, but so far as Widal test was conduCted for Typhoid it
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 17
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
was found negative. Even in such a situation the patient was A
treated for Typhoid and not for malaria and when the condition
of the µatient worsened critically, she was sent to Yashoda
Hospital in a very critical condition with no pulse, no BP and in
an unconscious state with pupils dilated. As a result of which
the patient had to be put on a ventilator. B

15. We do not think that in this case, expert evidence was
necessary to prove medical negligence.

16. The test of medical negligence which was laid down
in Bo/am vs. Friern Hospital Management Committee C
reported in 1957 (2) All England Law Reports 118, has been
accepted by this Court as laying down correct tests in cases
of medical negligence.

17. Bolam was suffering from mental illness of the D
depressive type and was advised by the Doctor attached to the
defendants' Hospital to undergo electro-convulsive therapy.
Prior to the treatment Bolam signed a form of consent to the
treatment but was not warned of the risk of fracture involved.
Even though the risk was very small and on the first occasion E
when the treatment was given Bolam did not sustain any fracture
but when the treatment was repeated for the second time he
sustained fractures. No relaxant drugs or manual control were
used except that a male nurse stood on each side of the
treatment couch throughout the treatment. About this treatment
F
there were two bodies of opinion, one of which favoured the
use of relaxant drugs or manual control as a general practice,
and the other opinion was for the use of drug that was attended
by mortality risks and confined the use of relaxant drugs only
to cases where there are particular reasons for their use and G
Bolam case was not under that category. On these facts the
expert opinion of Dr. J.de Bastarrechea, consultant psychiatrist
attached to _the Hospital was taken. Ultimately the Court held
the Doctors were not negligent. In this context the following
principles have been laid down:
H
18 SUPREME COURT REPORTS (2010] 5 S.C.R.

A "A Doctor is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular
art" ... (See page 122 placitum 'B' of the report)

B 18. It is also held that in the realm of diagnosis and
treatment there is ample scope for..genuine difference of
opinion and a doctor is not negligent merely because his
conclusion differs from that of o.ther professional men. It was
also made clear that the true test for establishing negligence
C in diagnosis or treatment on the part of a doctor is whether he
has been proved to be.. guilty of such failure as no doctor of
ordinary skill would be guilty of if acting with ordinary care (See
page 122, placitum 'A' of the report). -~·

19. Even though Bolam test "Yas accept~i;Lby this Court
D as providing the standard norms in cases of medical
negligence, in the country of its origin: it is questioned on
various grounds. It has been found that the inherent danger in
Bolam test is that if the Courts defer too readily to expert
evidence medical standards would obviously decline. Michael
E Jones in his treaties on Medical Negligence (Sweet &
Maxwell), Fourth Edition, 2008 criticized the Bolam test as it
opts for the lowest common denominator. The learned author
noted that opinion was gaining ground in England that Bolam
test should be restricted to tho$e cases where an adverse result
F follows a course of treatment which has been intentional and
has been shown to benefit other patients previously. This should
not be extended to certain types of medical accident merely
on the basis of how common they are. It is felt ''.to do this would
set us on the slippery slope of excusing carelessness when it
G happens often enough" (See Michael Jones on Medical
Negligence paragraph 3-039 at p~ge 246).

20. With the coming into effect of Human Rights Act, 1998
from 2nd October, 2000 in England, the State's obligations
under the European Convention on Human Rights (ECHR) are
H justiciable in the domestic courts of England. Article 2 of the
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 19
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
Human Rights Act 1998 reads as .under:- A

"Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law".
B
21. Even though Bolam test 'has not been uprooted' it has
come under some criticism as has been noted in Jackson &
Powell on Professional Negligence (Sweet & Maxwel~, Fifth
Edition, 2002. The learned authors have noted (See paragraph
7-047 at page 200 in Jackson & Powell) that there is an C
argument to the effect that Bolam test is inconsistent with the
right to life unless the domestic courts construe that the
requirement to take reasonable care is equivalent wi!h the
requirement of making adequate provision for medical care. In
the context of such jurisprudential thinking in England, time has D
come for this Court also to reconsider the parameters set down
in Bolam test as a guide to decide cases on medical
negligence and specially in view of Article 21 of our Constitution
which encompasses within its guarantee, a r'ight to medical
treatment and medical bare. In England, Bolam test is now E
considered merely a 'rule of practice or of evidence. It is not a
rule of law' (See paragraph 1.60 in Clinical Negligence by
Michael Powers QC, Nigel Harris and Anthony Barton, 4th
Edition, Tofte/ Publishing). However as in the larger Bench of
this Court in Jacob Mathew vs. State of Punjab and another - F
(2005) 6 SCC 1, Chief Justice Lahoti has accepted Bolam test
as correctly laying down the standards for judging cases of
medical negligence, we follow the same and refuse to depart
from it. ·

1
22. The question of medical negligence came up before G
I this Court in a decision in Mathew (supra), in the context of
i Section 304-A of Indian Penal Code.
_. 23. Chief Justice Lahoti, speaking for the unanimous three-
' Judge Bench in Mathew (supra), made a clear distinction H
20 SUPREME COURT REPORTS [2010] 5 S.C.R.

A between degree of negligence in criminal law and civil. law
where normally liability for damages is fastened. His Lordship
held that to constitute negligence in criminal law the essential
ingredient of 'mens rea' cannot be excluded and in doing so,
His Lordship relied on the speech of Lord Diplock in R. vs.
B Lawrence, [(1981) 1 All ER 974]. The learned Chief Justice
further opined tnat in order to pronounce on criminal negligence
it has to be established that the rashnesswas of such a degree
as to amount to taking a hazard in which injury was most likely
imminent. The neat formulation by Lord Atkin in Andrews v.
c Director of Public Prosecutions, [(1937) 2 All ER 552 (HL) at
page 556] wherein the learned Law Lord delineated the concept
of negligence in civil and criminal law differently was accepted
by this Court.

24. Lord Atkin explained the shades of distinction between
D the two very elegantly and which is excerpted below:-

"Simple lack of care such as will constitute civil liability is
not enough. For purposes of the criminal law there are
degrees of negligence, and a very high degree of
E negligence is required to be proved before the felony is
established."

25. Chief Justice Lahoti also relied on the speech of Lord
Porter in Riddell vs. Reid [(1943) AC 1 (HL)] to further identify
the difference between the two concepts and which I quote:-
F
"A higher degree of negligence has always been
demanded in order to establish a criminal offence than is
sufficient to create civil liability."

G [This has been quoted in the treatise on Negligence
by Charlesworth and Percy (para 1.13)]

26. In the concluding part of the j'udgment in Mathew
(supra) in paragraph 48, sub-paras (5) and (6) the learned Chief
).ustice summed up as follows:-
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 21
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
"(5) The jurisprudential concept of negligence differs in civil A
ard criminal law. What may be negligence in civil law may
not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens
rec. must be shown to exist. For an act to amount to criminal
negligence, the degree of negligence should be much B
higher i.e. gross or of a very high degree. Negligence
which is neither gross nor of a higher degree may provide
a ground for action in civil law but cannot form the basis
for prosecution.

(6) The word "gross" has not been used in Section 304-A C
IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree
as to be "gross". The expression "rash or negligent act"
as occurring in Section 304-A IPC has to be read as
qualified by the word "grossly"." D

27. After laying down the law, as above, the learned Chief
Justice opined that in cases of criminal negligence where a
private complaint of negligence against a doctor is filed and
before the investigating officer proceeds against the doctor E
accused of rash and negligent act, the investigating officer must
obtain an independent and competent medical opinion
preferably from a doctor in Government service, qualified in that
branch of medical practice. Such a doctor is expected to give
an impartial and unbiased opinion applying the primary test to
F
the facts collected in the course of investigation. Hon'ble Chief
Justice suggested that some statutory rules and statutory
instructions incorporating certain guidelines should be issued
by the Government of India or the State Government in
consultation with the Medical Council of India in this regard. Till G
that is done, the aforesaid course should be followed. But those
directions in paragraph 52 of Mathew (supra) were certainly not
given in respect of complaints filed before the Consumer Fora
under the said Act where medical negligence is treated as civil
li'ability for payment of damages.
H
22 SUPREME COURT REPORTS [2010] 5 S.C.R.

A 28. This fundamental distinction pointed out by the learned
Chief Justice in the unanimous three-Judge Bench decision in
Mathew (supra) was unfortunately not followed in the subsequent
two-Judge Bench of this Court in Martin F. D'souia v. Mohd.
lshfaq, reported in 2009 (3) SCC 1. From the facts noted in
B paragraphs 17 and 18 of the judgment in D'souza (supra), it is
clear tha·t in D'souza (supra) complaint was filed before the
National Consumer Disputes Redressal Commission and no
criminal complaint was filed. The Bench in D'souza (supra)
noted the previous three-Judge Bench judgment in Mathew
C (supra) [paragraph 41 at pages 17-18 of the report] but in
paragraph 106 of its judgment,b'souza (supra) equated a
criminal complaint against a doctor or hospital with a complaint
against a doctor before the Consumer Fora and gave the
following directions covering cases before both. Those
directions are set out below:-
D
"We, therefore, direct that whenever a complaint is
· received against a doctor or hospital by the Consumer Fora
(whether District, State or National) or by the criminal court
then before issuing notice to the doctor or hospital against
E whom the complaint was made the Consumer Forum or
the criminal court should first refer the matter to a competent
doctor or committee of doctors, specialised in the field
relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a
F prima facie case of medical negligence should notice be
then issued to the doctor/hospital concerned. This is
necessary to avoid harassment to doctors who may not be
ultimately found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the facts
G clearly come within the parameters laid down in Jacob
Mathew case, otherwise the policemen will themselves
have to face legal action.".
. .

29. We are of the view that aforesaid directions are not
consistent with the law laid down by the larger Bench in Mathew
.H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 23
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
(supra). In Mathew (supra), the direction for consulting the A
opinion of another dot;tor before proceeding with criminal
investigation was confined only in cases of criminal complaint
and not in respect of cases before the Consumer Fora. The
reas.Jn why the larger Bench in Mathew (supra) did not equate
the two is obvious in view of the jurisprudential and conceptual B
differerace between cases of negligence in civil and criminal
matter. This has been elaborately discussed in Mathew (supra).
This distinction has been accepted in the judgment of this Court
in Malay Kumar Ganguly (supra) (See paras 133 and 180 at
pages 274 and 284 of the report). c
30. Therefore, the general directions in paragraph 106 in
D'souza (supra), quoted above are, with great respect,
inconsistent with the directions given in paragraph 52 in
Mathew (supra) which is a larger Bench decision.
D
31. Those directions in D'souza (supra) are also
inconsistent with the principles laid down in another three-
J udge Bench of this Court rendered in Indian Medical
Association (supra) wherein a three-Judge Bench of this Court,
on an exhaustive analysis of the various provisions of the Act, E
held that the definition of 'service' under Section 2(1 }(o) of the
Act has to be understood on broad parameters and it cannot
exclude service rendered by a medical practitioner.

32. About the requirement of expert evidence, this Court
made it clear in Indian Medical Association (supra) that before F
the Fora under the Act both simple and complicated cases may
come. In complicated cases which require recording of
evidence of expert, the complainant may be asked to approach
the civil court for appropriate relief. This Court opined that
Section 3 of the Act provides that the provisions of the Act shall G
be in addition to and not in derogation of the provisions of any
other law for the time being in force. Thus the Act preserves
the right of the consumer to approach the civil court in
complicated cases of medical negligence for necessary relief.
BGt this Court held that cases in which complicated questions H
24 SUPREME COURT REPORTS [2010] 5 S.C.R.

A do not arise the Forum can give redressal to an aggrieved
consumer on the basis of a summary trial on affidavits. The
relevant observations of this Court are:

" ... There may be cases which do not raise such
complicated questions and the deficiency in service may
B
be due to obvious faults which can be easily established
such as removal of the wrong limb or the performance of
an operation on the wrong patient or giving injection of a
drug to which the patient is allergic without looking into the
out-patient card containing the warning [as in Chin Keow
c v. Govt. of Malaysia· 1967 (1) WLR 813(PC)] or use of 1
wrong gas during the course of an anaesthetic or leaving
inside the patient swabs or other items of op~rating
equipment after surgery. One often reads about such
incidents in the newspapers. The issues arising in the
D complaints in such cases can be speedily disposed of by
the procedure that is being followed by the Consumer
Disputes Redressal Agencies and there is no reason why
complaints regarding deficie'ncy in service in such cases
should not be adjudicated 1by the Agencies under the Act.
E In complaints involving complicated issues requiring
recording of evidence of experts, the complainant can be
asked to approach the civil court for appropriate relief.
Section 3 of the Act which prescribes that the provisions
of the Act shall be in addition to and not in derogation of
F the provisions of any other law for the time being in force,
preserves the right of the consumer to approach the civil
court for necessary relief ... "

33. A careful reading of the aforesaid principles laid down
G by this Court in Indian Medical Association (supra) makes the
following position clear:-

(a) There may be simple cases of medical negligence
where expert evidence is not required.

H (b) Those cases should be decided by the Fora under the
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 25
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
said Act on the basis of the procedure which has been A
prescribed under the said Act.

(c) In complicated cases where expert evidence is required
the parties have a right to go to the Civil Court.

(d) That right of the parties to go to Civil Court is preserved B
under Section 3 of the Act.

34. The decision in Indian Medical Association (supra)
has been further explained and reiterated in another three judge
Bench decision in br. J. J. Merchant and others vs. Shrinath c
Chaturvedi reported in (2002) 6 SCC 635.

35. The three Judge Bench in Dr. J. J. Merchant (supra)
accepted the position that it has to be left to the discretion of
Commission "to examine experts if required in an appropriate
matter. It is equally true that in cases where it is deemed fit to D
examine experts, recording of evidence before a Commission
may consume time. The Act specifically empowers the
Consumer Forums to follow the procedure which may not require
more time or delay the proceedings. The only caution required
is to follow the said procedure strictly." [para 19, page 645 of E
the report]

[Emphasis supplied]

36. It is, therefore, clear that the larger Bench in Dr. J. J. F
Merchant (supra) held that only in appropriate cases
examination of expert may be made and the matter is left to
the discretion of Commission. Therefore, the general direction
given in para 106 in D'Souza (Supra) to have expert evidence
in all cases of medical negligence is not consistent with the
principle laid down by the larger bench in paragraph 19 in Dr. G
J. J. Merchant (supra).

37. In view of the aforesaid clear formulation of principles
on the requirement of expert evidence only in complicated
H
26 SUPREME COURT REPORTS [2010] 5 S.C.R.

A ·cases, and where in its discretion, the Consumer Fora feels it
is required, the direction in paragraph 106, quoted above in
D'souza (supra) for referring all cases of medical negligence
to a competent doctor or committee of doctors specialized in
the field is contrary to the principles laid down by larger Bench
B of this Court on this point. In D'souza (supra) the earlier~arger
Bench decision in Dr. J. J. Merchant (supra) hfls n"ot been
noticed. ·· · ·

38. Apart from being contrary to the aforesaid two
C judgments by larger Bench, the directions in paragraph 106 in
D'souza (supra) is also contrary to the provisions of the said
Act and the Rules which is the governing statute.

~9 Those_ directions are also contrary to the avowed
purpd'Sl@ls of the Act. In this connection we must remember that
D the Act was brought about in the background of worldwide
movement for consumer protection. The Secretary General,
United Nations submitted draft guidelines for consumer
protection to the Economic and Social Council in .1983.
Thereupon on an extensive discussions
/
and negotiations
E among various countries on tJ:ie scope and content of such
impending legislation certain guidelines were arrived at. Those
guidelines are:-

"Taking into account the interests and needs of consumers
in all countries, particularly those in developing countries,
F recognizing that consumers often face imbalances in
economic terms, educational level and bargaining power,
and bearing in mind that consumer should have the right
of access to non-hazardous products,· as well as
importance of promoting just, equitable and sustainable
G economic and social development, these guidelines for
consumer protection have the following objectives:-

To assist countries in achieving or maintaining
adequate protection for their population as consumers.
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 27
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
To facilitate production and distribution patterns A
responsive to the needs and desires of consumers.

To encourage high levels of ethical conduct for those
engaged in the production. and distribution of goods and
services to consumers.
B
To assist countries in curbing abusive business
practices by all enterprises at the national and international
levels which adversely affect consumers.

To facilitate the development of independent c
consumer groups.

To further international cooperation in the field of
consumer protection.

To encourage the development of market conditions D
which provide consumers 'with greater choice at lower
prices."

40. A three-Judge Bench of this Court in State of
Kamataka v. Vishwabharathi House Building Coop. Society E
& Others, (2003) 2 SCC 412, referred to those guidelines in
paragraph 6. This Court further noted that the framework of the
Act was provided by a resolution dated 9.4.1985 of the General
Assembly of the United Nations Organization known as
Consumer Protection Resolution No. 39/24~. to which India was F
a signatory.

41. After treating the genesis and history of the Act, this
Court held that that it seeks to provide for greater protection of
the interest of the consumers by providing a Fora for quick and
speedy disposal of the grievances of the consumers. These G
aspect of the matter was also considered and highlighted by
this Court in Lucknow Development Authority v. M.K. Gupta,
[(1994) 1 SCC 243], in Charan Singh v. Healing Touch
Hospital [(2000) 7 sec 668] as also in the case of Spring
H
28 SUPREME COURT REPORTS [2010] 5 S.C.R.

A Meadows Hospital v. Harjo/ Ahluwalia [(1998) 4 SCC 39] and
in the case of India Photographic Co. Ltd. v. H.D. Shourie
[(1999) 6 sec 428].

42. It is clear from the statement of objects and reasons
B of the Act that it is to provide a forum for speedy and simple
redressal of consumer disputes. Such avowed legislative
purpose cannot be either defeated or diluted by superimposing
a requirement of having expert evidence in all cases of medical
negligence regardless of factual requirement of the case. If that
is done the efficacy of remedy under the Act will be substantially
c curtailed and in many cases the remedy will become illusory
to the common man.

43. In Spring Meadows (supra) this Court was dealing with
the case of medical negligence and held that in cases of gross
D medical negligence the principle of res ipsa loquitur can be
13
applied. In paragraph 10, this Court gave certain illustrations
on medical negligence where the principle of res ipsa loquitur
can be applied.

44. In Postgraduate Institute of Medial Education and
E
Research, Chandigarh v. Jaspa/ Singh and others, (2009) 7
SCC 330, also the Court held that mismatch in transfusion of
blood resulting in death of the patient, after 40 days, is a case
of medical negligence. Though the learned Judges have not
used the expression res ipsa loquitur but a case of mismatch
F blood transfusion is one of the illustrations given in various
textbooks on medical negligence to indicate the application of
res ipsa /oquitur.

45. In the treaties on Medical Negligence by Michael
G Jones, th( · arned author has explained the principle of res ipsa
loquitur as essentially an evidential principle and the learned
author opined that the said principle is intended to assist a
claimant who, for no fault of his own, is unable to adduce
evidence as to how the accident occurred. The principle has
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 29
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
been explained in the case of Scott v. London & St. Katherine A
Docks Co. [reported in (1865) 3 H & C. 596], by Chief Justice
Erle in the following manner:-

" ... where the thing is shown to be under the management
of the defendant or his servants, and the accident is such
8
as in the ordinary course of things does not haRpen if those
who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the
defendants, that the accident arose from want of care''.

46. The learned author at page 314, para 3-146 of the C
book gave illustrations where the principles of res ipsa loquitur
have been made applicable in the case of medical negligence.
All the illustrations which were given by the learned author were
based on decided cases. The illustrations are set out below:-
D
* "Where a patient sustained a burn from a high
frequency electrical current used for "electric
coagulation" of the blood [See Clarke v. Warboys,
The Times, March 18, 1952, CA];

* Where gangrene developed in the claimant's arm E
following an intramuscular injection [See Cavan v. 1
Wilcox (1973) 44 D.L.R. (3d) 42];

* When a patient underwent a radical mastoidectomy
and suffered partial facial paralysis [See Eady v. F
Tenderenda (1974) 51 D.l.R. (3d) 79, SCC];

* Where the defendant failed to diagnose a known
c')mplication of surgery on the patient's hand for
Paget's disease[See Rietz v. Bruser (No.2) (197@) G
1 W.W.R. 31, Man QB.];

* Where there was a delay of 50 minutes in obtaining
expert obstetric assistance at the birth of twins
when the medical evidence was that at the most no
H
30 SUPREME COURT REPORTS [2010] 5 S.C.R.

A more than 20 minutes should elapse between the
birth of the first and the second twin [See Bull v.
Devon Area Health Authority (1989), (1993) 4
Med. LR. 117 at 131.J;

* Where, following an operation under general
B
anaesthetic, a patien,t in the recovery ward
sustained brain damage caused by bypoxia for a
period. of four to five minutes [See Coyne v. Wigan
Health Authority {1991) 2 Med. LR. 301, QBD];

c * Where, following a routine appendisectomy under
general anaesthetic, an otherwise fit and healthy girl
suffered a fit and went into a permanent coma [See
Lindsey v. Mid-Western Health Board (19~3) 2 l.R.
147 at 181);
D
* When a needle broke in the patient's buttock while
he was being given an injection [See Brazier v.
Ministry of Defence (1965) 1 LI. Law Rep. 26 at
30];
E * Where a spinal anaesthetic became contaminated
with disinfectant as a result of the manner in which
it was stored causing paralysis to the patient [See
Roe v. Minister of Health (1954) 2 Q.B. 66. See
also Brown v. Merton, Sutton and Wandsworth
F Area Health Authority (1982) 1 All E.R. 650];

* Where an infection following surgery in a "well-
staffed and modern hospital" remained
undiagnosed until the patient sustained crippling
G injury [See Hajgato v. London Health Association
(1982) 36 O.R. (2d) 669 at 682]; and

* Where an explosion occurred during the course of
administering anaesthetic to the patient when the
technique had frequently been used without any
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 31
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]
mishap [Grits v. Sylvester (1956) 1 D.L.R. (2d) A
502]."

47. In a case where negligence is evident, the principle of·
res ipsa /oquitur operates and the complainant does not have
to prove anything as the thing (res) proves itself. In such a case B
it is for the respondent to prove that he has taken care and done
his duty to repel the charge of negligence.

48. If the general directions in paragraph 106 in D'souza
(supra) are to be followed then the doctrine of res ipsa /oquitur
which is applied in cases of medical negligence by this Court C
and also by Courts in England would be redundant.

49. In view of the discussions aforesaid, this Court is
constrained to take the view that the general direction given in
paragraph 106 in D'souza (supra) cannot be treated as a 0
binding precedent and those directions must be confined to the
particular facts of that case.

50. With great respect to the Bench which decided
D'souza (supra) this Court is of the opinion that the directions
in D'souza (supra) are contrary to (a) the law laid down in E
paragraph 37 of Indian Medical Association (supra), (b) and
paragraph 19 in Dr. J.J. Merchant (supra), (c) those directions
in paragraph 106 of D'souza (supra) equate medical
negligence in criminal trial and negligence fastening civil liability · •
whereas the earlier larger Bench in Mathew (supra) elaborately F
differentiated betweeri the two concepts, (d) Those directions
in D'souza (supra) are contrary to the said Act which is the
governing statute, (d) those directions are also contrary to the
avowed purpose of the Act, which is to provide a speedy and
efficacious remedy to the consumer. If those general directions G
are followed then in many cases the remedy under the said Act
will become illusory, (f) those directions run contrary to principle
of 'Res ipsa loquitur' which has matured into a rule of law in
some cases of medical negligence where negligence is evident
and obvious. H
32 SUPREME COURT REPORTS [2010] 5 S.C.R.

A 51. When a judgment is rendered by ignoring the
provisions of the governing statute and earlier larger Bench
decision on t~e point such decisions are rendered 'Per
incuriam'. This concept of 'Per incuriam' has been explained
iri many decisions of this Court. Justice Sabyasachi Mukharji
B (as his Lordship then was) speaking for the majority in the case
of A.R. Antulay vs. R.S. Nayak and another reported in (1988)
2 sec 602 explained the concept in paragraph 42 at page 652
of the report in following words:-

"Per incuriam" are those decisions given in ignorance or
c forgetfulness of some inconsistent statutory provision or of
some authority binding on the court concerned, so that in
such cases some part of the decision or some step in the
reasoning on which it is based, is found, on that account
to be demonstrably wrong.
D
52. Subsequently also in the Constitution Bench judgment
of this Court in Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh vs. Presiding Officer, Labour
Court, Chandigarh and others reported in (1990) 3 SCC 682,
E similar views were expressed in paragraph 40 at page 705 of
the report.

53. The two-Judge Bench in D'souza has taken note of the
decisions in Indian Medical Association and. Mathew, but even
after taking note of those two decisions, D'souza (supra) gave
F those general directions in paragraph 106 which are contrary
to the principles laid down in both those larger Bench
decisions. The larger Bench decision in Dr. J.J. Merchant
(supra) has not been noted in D'souza (supra). Apart from that,
the directions in paragraph 106 in D'souza (supra) are contrary
G to the provisions of the governing statute. That is why this Court
cannot accept those directions as constituting a binding
precedent in cases of medical negligence before consumer
Fora. Those directions are also inconsistent with the avowed
purpose of the said Act.
H
V. KISHAN RAO v. NIKHIL SUPER SPECIALITY 33
HOSPITAL & ANR. [ASOK KUMAR GANGULY, J.]

54. This Court however makes it clear that before the A
consumer Fora if any of the parties wants to adduce expert
eviL.~nce, the members of the Fora by applying their mind to
the facts and circumstances of the case and the materials on
record can allow the parties to adduce such evidence if it is
appropriate to do so in the facts of the case. The discretion in B
this matter is left to the members of Fora especially when
·retired judges of Supreme Court and High Court are appointed
to head National Commission and the State Commission
respectively. Therefore, these questions are to be judged on
the facts of each case and there cannot be a mechanical or c
strait jacket approach that each and every case must be
referred to experts for evidence. When the Fora finds that expert
evidence is required, the Fora must keep in mind that an expert
witness in a given case normally discharges two functions. The
first duty of the expert is to explain the technical issues as
0
clearly as possible so that it can be understood by a common
man. The other function is to assist the Fora in deciding whether
the acts or omissions of the medical practitioners or the hospital
constitute negligence. In doing so, the expert can throw
considerable light on the current state of knowledge in medical E
science at the time when the patient was treated. In most of
the cases the question whether a medical practitioner or the
hospital is negligent or not is a mixed question of fact and law
and the Fora is not bound in every case to accept the opinion
of the expert witness. Although, in many cases the opinion of
the expert witness may assist the Fora to decide the controversy F
one way or the other.

55. For the reasons discussed above, this Court holds that
it is not bound by the general direction given in paragraph 106
in D'souza (supra). This Court further holds that in the facts and G
circumstances of the case expert evidence is not required and
District Forum rightly did not ask the appellant to adduce expert
evidence. Both State Commission and the National
Commission fell into an error by opining to the contrary. This
Court is constrained to set aside the orders passed by the State H
34 SUPREME COURT REPORTS [2010] 5 S.C.R.

A Commission and the National Commission and restores the
order passed by the District Forum. The respondent no.1 is
directed to pay the appellant the amount granted in his favour
by the District Forum within ten weeks from date.

8 56. The appeal is thus allowed with costs assessed at
Rs.10,000/- to be paid by the respondent No.1 to the appellant
within ten weeks.

N.J. Appeal allowed.